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Maritime Update: 1st Circuit Court Finds a Vessel Passenger can Recover for Emotional Damages without Physical Harm if in the “Zone of Danger”

Bill Schwartz - 

In the case of SAWYER BROTHERS, INC v. ISLAND TRANSPORTER, LLC; and M/V Island Transporter (2018 WL 1602230), decided by the federal 1st Circuit Court of Appeals on April 3, 2018, the court upheld the award of emotional distress damages to plaintiffs on a ferry who were not physically impacted but were within the “zone of danger.”

Factually, Sawyer Brothers, Inc. hired Island Transporter, LLC to ferry three construction vehicles and their drivers from Rockland, Maine to North Haven, Maine. The M/V ISLAND TRANSPORTER encountered rough seas while traversing Penobscot Bay, and two of the vehicles tipped over onto the vessel’s port bulwark. As part of the suit, Ryan and Ross Sawyer (collectively, “Sawyer Brothers”) filed this maritime action claiming the ship captain was negligent and seeking damages not only for property loss, but more specific to this update, for emotional distress.

The issue we address is whether a plaintiff can recover for emotional injury under the general maritime law without sustaining a contemporaneous physical impact. The district court awarded the Sawyers emotional distress damages based on their presence within the “zone of danger,” not based upon any physical impact. The matter was appealed by the defendant asking the 1st Circuit to adopt the more restrictive “physical impact test.”

The “zone of danger” test applied by the district court allowed recovery for emotional injury to those “who are placed in immediate risk of physical harm by that conduct.” This was recognized by the Supreme Court in its 1994 decision of Consolidated Rail Corp. v. Gottshall.

In Gottshall, the Supreme Court held the zone of danger test applied to emotional damages claims brought under the Federal Employers’ Liability Act (“FELA”). Section 1 of the FELA provides railroad employees with a cause of action when they are injured or killed as a result of their employers’ negligence, 45 U.S.C. § 51. The Jones Act provides a parallel cause of action for seamen, 46 U.S.C. § 30104, and incorporates by reference the standard of liability under the FELA. Under Gottshall, the court declared that “[c]aselaw developed under both statutes guides subsequent interpretation of either of them.” (“[P]recedent under the Jones Act is deemed instructive in FELA cases, and vice versa.”).

The zone of danger test, as articulated in Gottshall, therefore applies to seamen alleging emotional damages under the Jones Act. Given its application to seamen, the 1st Circuit concluded there was no principled basis for imposing a more restrictive physical impact test upon passengers alleging such emotional damages under the general maritime law.

The 1st Circuit joined two other appellate circuits (the 9th and the 11th) and a number of district courts in recognizing that, post-Gottshall, a plaintiff within the zone of danger may recover for emotional damages under the general maritime law. A plaintiff is within the zone of danger if he sustains a physical impact, or is “placed in immediate risk of physical harm” by a defendant’s negligent conduct. Plaintiffs facing immediate physical peril or the reasonable apprehension thereof are within the zone of danger. The court noted “a near miss may be as frightening as a direct hit.”

The entire case can be found here.

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or



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